Broadcast Flag

The Broadcast Flag is a technology mandate and promoted by the motion picture industry that aimed to protect digital broadcast television. Content would be broadcast free and clear with a visually imperceptible “flag” that the FCC required digital devices to respond to by limiting distribution of the flagged content.

Introduction

The “broadcast flag” was the content industry’s attempt to get the FCC to do its dirty work. The content industry convinced the FCC to require that all consumer electronic devices that received television signals obey instructions embedded in broadcast signals that limit a viewer’s ability to make use of the content received. Sold as an attempt to control “piracy,” the broadcast flag in fact would have limited consumers’ lawful use rights. In 2005, Public Knowledge, the American Library Association, and others succeeded in having the FCC’s broadcast flag ruling struck down.

Was the broadcast flag a kind of DRM?

Yes. Although the broadcast flag didn’t use any kind of encryption or scrambling, it was a technological protection measure designed to limit the ability to copy, store, and excerpt the protected work. Like all forms of DRM, the broadcast flag required the cooperation—or the coercion—of the manufacturers of consumer devices.

Unlike most kinds of DRM, like Apple’s FairPlay or the DVD Copy Control Association’s CSS, the broadcast flag’s proponents went to the government to require its use, instead of negotiating in an open marketplace. Like other DRM, the broadcast flag would have been illegal to circumvent, even if the purpose of the circumvention was to make lawful use of the protected content.

Is the broadcast flag dead?

Not by a long shot. Although we won a major victory when we had the FCC’s order mandating the broadcast flag overturned, similar ideas keep popping up. The content industry has gone to Congress to ask it to implement a broadcast flag. Broadcast flags have also been proposed for terrestrial radio, and content owners have tried to use a the Copyright Office’s skewed royalty-setting proceedings to force webcasters to implement other kinds of DRM.

Timeline

1996: Copy Protection Technical Working Group (“CPTWG”), an industry group composed of members of the content, electronics, information technology, cable, and broadcast industries, is founded to explore methods to control copying of DVDs and digital cable and satellite signals.
1998: Congress passes DMCA, declining to incorporate requirements that consumer devices respect technological protection measures.

“Technology and engineers — not lawyers — should dictate product design.” 144 Cong. Rec. S9936 (daily ed. Sept. 3, 1998) (remarks of Sen. Ashcroft); see also 144 Cong. Rec. H7100 (daily ed. Aug. 4, 1998) (remarks of Rep. Klug).

“Nothing in … section [1201] shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological protection measure.” 17 U.S.C. S 1201(c)(3).
2001: CPTWG expands its focus to cover over-the-air digital television broadcasts (“DTV”).
June 2002: CPTWG subgroup, the Broadcast Protection Discussion Group (“BPDG”), issues “proposed solution” to protect DTV broadcasts from “unauthorized redistribution” by flagging content and protecting it with approved technologies. It recommends that a technology called the broadcast flag, which was developed by Fox and subsequently ratified as an optional standard by the Advanced Television Systems Committee, television’s standards-setting body.
August 2002: FCC issues a Notice of Proposed Rulemaking on the question of Digital Broadcast Copy Protection. The FCC requested comment on “whether quality digital programming is now being withheld because of concerns over lack of digital broadcast copy protection,” and “[t]o what extent … the absence of a digital broadcast copy protection scheme [would] … delay or prevent the DTV transition.” The FCC admits in its NPRM that it was motivated not by any activity expressly within its statutory authority, but by “the importance placed upon digital broadcast copy protection by some industry participants.” The FCC also sought comment on whether there was even a “jurisdictional basis for the Commission rules dealing with digital broadcast television copy protection.” Digital Broadcast Copy Protection, Notice of Proposed Rulemaking, 17 FCC Rcd. 16027 (2002).
Thousands of comments and reply comments filed in NPRM docket. Nearly all of them oppose the Broadcast Flag.
MPAA et. all file comments arguing that the FCC does have jurisdiction.
The FCC gets involved in a Congressional turf war when Rep. Billy Tauzin (Chairman of the House Committee on Energy and Commerce) and Senator Ernset Hollings (Chairman of the Senate Committee on Commerce, Science, and Transportation) file letter supporting the FCC’s action, and Rep. James Sensenbrenner, Jr. (Chairman of the House Committee on the Judiciary) and Sen. Patrick Leahy (Chairman, Senate Judiciary Committee) write a letter opposing the FCC’s jurisdiction. John McCain later writes a letter opposing the FCC’s jurisdiction.
Rather than providing examples of a problem that needs to be solved, television networks make threats about what they would do if the broadcast flag is not implemented. Of course, none of these threats were ever carried out. For example, Viacom claimed that

[I]f a broadcast flag is not implemented and enforced by Summer 2003, Viacom’s CBS Television Network will not provide any programming in high definition for the 2003-2004 television season. Comments of Viacom, FCC Docket 02-230, at 1.
Hearing before the Subcommittee on Courts, the Internet, and Intellectual Property.
November 2003: FCC issues its final Order, essentially adopting the MPAA’s proposal. Digital Broadcast Content Protection, Report & Order & Further Notice of Proposed Rulemaking, 18 F.C.C. Rcd. 23,550 (2003). However, the FCC did not claim to have direct authority to implement the rule, as the MPAA urged. Rather, it claimed to have ancillary jurisdiction. The Commission’s position was that it had the general authority to regulate televisions, and that Congress would have to act to expressly withhold it power. (Commissioners Adelstein and Copps recognized that the Order went too far in limiting consumers’ rights to make lawful use of broadcast material. Order at 65.)
January 30, 2004: Public Knowledge files lawsuit challenging broadcast flag in the United States Court of Appeals for the District of Columbia Circuit. The FCC had stunningly argued that it had the authority to regulate any devices that were attached to communications networks, and that its ancillary authority was unlimited unless expressly curtailed by Congress. Public Knowledge and others argued that the FCC had no jurisdiction to mandate the broadcast flag, and that the FCC was impermissibly interfering with copyright law, an area over which it has no authority.
Ongoing: There is significant wrangling over the legal concept of “standing.” Generally speaking, in American courts one cannot just sue the government for breaking the law; there needs to be a real injury to a plaintiff. The lawsuit is allowed to go ahead when the court determines, among other things, that members of the American Library Association, one of the named plaintiffs, would suffer demonstrable harm to their library operations as a result of the broadcast flag.
August 2004. In a followup ruling, the FCC approves 13 “compliant” technologies. Digital Output Protection Technology & Recording Method Certifications, 19 FCC Rcd. 15,876, (2004).
May 6, 2005: The DC Circuit issues its opinion. Administrative agency decisions generally get substantial deference from courts. However, their determinations as to the scope of their authority get no deference from courts. The court holds that the FCC had no jurisdictional basis for implementing the broadcast flag, and invalidates the FCC’s order. Having reached its judgment, the court does not address the argument about the FCC interfering with copyright law.